Tokio Marine America Ins. v. Prestig CA2/7

Filed 7/18/22 Tokio Marine America Ins. v. Prestig CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from 3citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
TOKIO MARINE AMERICA B312917
INSURANCE COMPANY,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
20LBCV00504)
v.
PRESTIG INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
Law Offices of Larry R. Glazer and Nicolette Glazer for
Defendant and Appellant.
Cammarano Law Group and Dennis A. Cammarano for
Plaintiff and Respondent.
_____________________
Tokio Marine America Insurance Company, as insurer-
subrogee, sued Prestig Inc. (doing business as Prestige) pursuant
to the Carmack Amendment to the Interstate Commerce Act
(49 U.S.C. § 14706) (Carmack Amendment), alleging Prestige had
failed to deliver a cargo of lithium ion batteries in good order and
condition to Panasonic Automotive Systems Company of America
(PASCA). Prestige filed a special motion to strike the complaint
pursuant to Code of Civil Procedure section 425.16.1 The superior
court denied the motion, ruling Tokio Marine’s cause of action did
not arise from protected speech or petitioning activity within the
meaning of section 425.16, subdivision (e). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Tokio Marine’s Complaint
Tokio Marine insures Panasonic Corporation of North
America and PASCA (collectively Panasonic). On January 19,
2021 Tokio Marine filed an amended complaint against Prestige
asserting one cause of action for “Carrier Liability under the
Carmack Amendment.” Tokio Marine alleged that on or about
March 6, 2020 Prestige, an interstate motor carrier, received a
shipment of 1,024 cartons of lithium ion batteries “for carriage
and delivery from Panasonic c/o Hanky Hanshin Express (USA)
Inc. at 1561 Beachey Place, Carson, California to Panasonic at
10800 Ambassador Drive, Kansas City, Missouri.” The complaint
attached a copy of a bill of lading showing PASCA as the
consignee, Prestige as the carrier and a “Carrier Signature”
acknowledging receipt of the cargo in good order.
1 Statutory references are to this code unless otherwise
stated.
2
Prestige’s driver was involved in a single vehicle accident,
in which the tractor trailer went off the road and overturned.
Tokio Marine alleged that, as a result of the accident Prestige
failed to deliver the cargo in good condition to Panasonic. Tokio
Marine sued Prestige for actual economic loss in the amount of
$620,199.27, “having paid [Panasonic] for the loss, [and]
stand[ing] in the shoes of its insured.” Tokio Marine alleged that
Prestige had not “paid any portion of the loss, despite demand
therefore.”2 Tokio Marine’s prayer for relief included the
principal amount, pre- and postjudgment interest and costs.
3. The Special Motion To Strike
On February 18, 2021 Prestige filed a special motion to
strike the complaint pursuant to section 425.16. Prestige
described Tokio Marine as “[u]pset” that Prestige denied
Panasonic’s freight claim, and Tokio Marine filed the lawsuit to
“exact economic revenge” against Prestige for “performing its
regulatory duties.” Prestige characterized the “gravamen” of
Tokio Marine’s cause of action as Prestige’s denial of Panasonic’s
freight claim, which Prestige argued was protected activity under
section 425.16 because the filing of a freight claim was a
2 According to evidence submitted with the parties’ briefing
on the special motion to strike, on August 31, 2020 counsel for
Tokio Marine communicated a settlement demand in the amount
of $300,000 to counsel for Prestige. The letter stated Tokio
Marine would “proceed with litigation of the full amount of the
loss without regard to any insurance coverage limitations” if the
demand was not accepted within 30 days. Prior to the settlement
demand, on March 31, 2020 Panasonic Corporation of North
America presented a written freight claim to Prestige, which
Prestige denied on April 20, 2020.
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prerequisite to maintaining an action for cargo damage under the
Carmack Amendment. Prestige also argued the freight claims
process itself was protected activity as an “official proceeding
authorized by law” under section 425.16,
subdivision (e)(2). Prestige further contended its refusal of Tokio
Marine’s settlement offer prior to the filing of the lawsuit was
protected activity.
Regarding the merits of the claim, Prestige argued Tokio
Marine could not carry its burden to show a likelihood of
prevailing because the litigation privilege barred the claim and,
in any event, Tokio Marine had not made the required
prelitigation freight claim. Prestige also asserted various
problems with the bill of lading upon which Tokio Marine relied,
including that Tokio Marine was not a party to the non-
negotiable bill of lading.
3. The Superior Court’s Ruling
The superior court denied the motion, ruling Prestige had
failed to carry its threshold burden of demonstrating Tokio
Marine’s claim arose from protected speech or petitioning activity
within the meaning of section 425.16. The court found that Tokio
Marine’s claim arose from the vehicle accident and not the
prelitigation claims process or settlement discussions. Because
Prestige failed to carry its burden on the first step, the court did
not reach the question of Tokio Marine’s likelihood of success on
the merits.
Prestige filed a timely notice of appeal. (§§ 425.16,
subd. (i), 904.1, subd. (a)(13).)
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DISCUSSION
1. The Special Motion To Strike: Governing Law and
Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “A cause of action against
a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1); see Rand Resources, LLC. v. City of Carson
(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of
action only if the cause of action (1) arises from an act in
furtherance of the right of petition or free speech ‘in connection
with a public issue,’ and (2) the plaintiff has not established ‘a
probability’ of prevailing on the claim”].)
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in
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furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a
public issue or an issue of public interest.”
In ruling on a special motion to strike under section 425.16,
the trial court engages in a now-familiar two-step process. “First,
the defendant must establish that the challenged claim arises
from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384; accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009 (Bonni); Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park, supra,
2 Cal.5th at p. 1062.) “[I]n ruling on an anti-SLAPP motion,
courts should consider the elements of the challenged claim and
what actions by the defendant supply those elements and
consequently form the basis for liability.” (Id. at p. 1063.) Thus,
“[t]he defendant’s first-step burden is to identify the activity each
challenged claim rests on and demonstrate that that activity is
protected by the anti-SLAPP statute. A ‘claim may be struck
only if the speech or petitioning activity itself is the wrong
complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted.’” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson); see
Bonni, supra, 11 Cal.5th at p. 1009 [“[t]he defendant’s burden is
to identify what acts each challenged claim rests on and to show
how those acts are protected under a statutorily defined category
of protected activity”]; Park, at p. 1060.)
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If the moving party fails to demonstrate that any of the
challenged claims for relief arise from protected activity (the first
step), the court properly denies the motion to strike without
addressing the probability of success (the second step). (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81; Verceles v.
Los Angeles United School Dist. (2021) 63 Cal.App.5th 776, 784.)
We review de novo an order granting or denying a special
motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th
at p. 884; Park, supra, 2 Cal.5th at p. 1067.)
2. Tokio Marine’s Cause of Action Under the Carmack
Amendment Does Not Arise From Protected Activity
The Carmack Amendment governs the liability of an
interstate carrier for “actual loss or injury” of goods damaged in
transit to “the person entitled to recover under the receipt or bill
of lading.” (49 U.S.C. § 14706(a)(1).) Three elements are
required to establish a “prima facie case under this law: (1) that
goods were delivered to the carrier in good condition; (2) that the
shipment arrived at its destination in damaged condition; [and]
(3) the amount of actual losses. [Citation.] Once the shipper has
established the elements of his prima facie case, negligence is
presumed, and the carrier must show both that it was free from
negligence, and that the damage was the product of one of the
common law exceptions to liability.” (Vacco Industries v. Navajo
Freight Lines, Inc. (1976) 63 Cal.App.3d 262, 269-270; accord,
Missouri P. R. Co. v. Elmore & Stahl (1964) 377 U.S. 134, 138.)
The Carmack Amendment preempts state law claims for “‘all
liability stemming from damage or loss of goods, liability
stemming from the claims process, and liability related to the
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payment of claims.’” (Dictor v. David & Simon, Inc. (2003)
106 Cal.App.4th 238, 247.)3
In support of its claim pursuant to the Carmack
Amendment, Tokio Marine alleged Prestige was an interstate
carrier that received a cargo of lithium ion batteries in good
condition; the cargo arrived at its destination in damaged
condition due to a vehicle accident; and the amount of actual loss
was $620,199.27.
On appeal Prestige argues Tokio Marine’s cause of action
arises from “petitioning activities during the presentation and
denial of the regulatory mandated freight claim process.”
Prestige insists the freight claims process is a prerequisite to any
liability it may have for cargo loss under the Carmack
Amendment thereby making the process a necessary element of
Tokio Marine’s cause of action. Prestige also argues Tokio
Marine’s prelitigation settlement demand and Prestige’s denial of
the same were protected activities.
As an initial matter, Tokio Marine’s complaint does not
contain any allegations about the freight claims process.
3 The Carmack Amendment “‘codified the common-law rule
that a carrier, though not an absolute insurer, is liable for
damage to goods transported by it unless it can show that the
damage was caused by (a) the act of God; (b) the public enemy; (c)
the act of the shipper himself; (d) public authority; (e) or the
inherent vice or nature of the goods.’” (Ward v. Allied Van Lines,
Inc. (4th Cir. 2000) 231 F.3d 135, 139-140.) It also “makes
unlawful and void any provision in any contract, bill of lading,
receipt, tariff schedule or rule or regulation purporting to limit
the carrier’s statutory liability.” (Bauer v. Jackson (1971)
15 Cal.App.3d 358, 366-367.)
8
Nonexistent allegations cannot serve as the basis of a claim, and
we decline to rewrite the complaint to consider whether facts that
have not been alleged could withstand a special motion to strike.
(See Medical Marijuana, Inc. v. ProjectCBD.com (2016)
6 Cal.App.5th 602, 621 [“[i]t would be inappropriate for us to
insert into a pleading claims for relief based on allegations of
activities that plaintiffs simply have not identified, even if the
parties suggest on appeal how plaintiffs might have intended to
frame those claims or attempt to identify the specific conduct or
assertions of statements alleged to be false on which plaintiffs
intended to base such claims for relief”].)
The complaint does allege Prestige did not pay for any
cargo loss “despite demand therefore.” A cause of action arising
from a defendant’s litigation activity implicates the right to
petition and is subject to a special motion to strike. (Rusheen v.
Cohen (2006) 37 Cal.4th 1048, 1056 [“‘[a] cause of action “arising
from” defendant’s litigation activity may appropriately be the
subject of a section 425.16 motion to strike’”].) An attorney’s
prelitigation settlement communication falls within the
protection of the anti-SLAPP statute. (Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255, 1259.) Thus, the communications
exchanged by the parties’ counsel prior to the filing of the
complaint, which referred to the filing of a lawsuit and document
retention obligations, are protected activity within the meaning
of section 425.16.
However, Tokio Marine’s cause of action does not “arise
from” the parties’ settlement communications. The alleged
wrongful act forming the basis for Tokio Marine’s cause of action
under the Carmack Amendment is the vehicle accident that
damaged the cargo. Tokio Marine’s allegation that Prestige
9
failed to pay for the loss despite its settlement demand is, at
most, prelitigation conduct that explains why Tokio Marine
resorted to filing its lawsuit. (See Rand Resources, LLC v. City of
Carson, supra, 6 Cal.5th at p. 621 [“a claim does not ‘arise from’
protected activity simply because it was filed after, or because of,
protected activity, or when protected activity merely provides
evidentiary support or context for the claim”]; C.W. Howe
Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700-701.)
Attempting to avoid this straightforward analysis of the
elements of Tokio Marine’s cause of action to recover for the
damage to its insured’s cargo, Prestige observes that Tokio
Marine was not the shipper and had no contractual rights under
the bill of lading. Rather, it asserts, Tokio Marine “is an
insurance company seeking an equitable subrogation disguised as
a Carmack Amendment claim.” As such, Prestige argues, the
only injury suffered by Tokio Marine was caused by Prestige’s
denial of the freight claim and refusal to pay the settlement
amount demanded—protected activity—not the vehicle accident
itself.
Prestige’s analysis fundamentally misperceives the nature
of Tokio Marine’s rights and the necessary elements of its cause
of action against Prestige after paying its insured for the cargo
loss. An insurer-subrogee of the shipper identified on the bill of
lading has standing to sue the carrier under the Carmack
Amendment. (OneBeacon Ins. Co. v. Haas Indus. (9th Cir. 2011)
634 F.3d 1092, 1099.) As is true generally in the insurance
context, the insurer, as subrogee, stands in the shoes of its
insured and has the same rights (and must plead and prove the
same elements) as that party. (See, e.g., State Farm General Ins.
Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th 1098, 1106
10
[“In the insurance context, subrogation takes the form of an
insurer’s right to be put in the position of the insured for a loss
that the insurer has both insured and paid. [Citations.] When
an insurance company pays out a claim on a property insurance
policy, the insurance company is subrogated to the rights of its
insured against any wrongdoer who is liable to the insured for
the insured’s damages”]; see generally Church Mutual Ins. Co.,
S.I. v. GuideOne Specialty Mutual Ins. Co. (2021) 72 Cal.App.5th
1042, 1066 [“‘The right of subrogation is purely derivative. An
insurer entitled to subrogation is in the same position as an
assignee of the insured’s claim, and succeeds only to the rights of
the insured. The subrogated insurer is said to “‘stand in the
shoes’” of its insured, because it has no greater rights than the
insured and is subject to the same defenses assertable against
the insured. Thus, an insurer cannot acquire by subrogation
anything to which the insured has no rights, and may claim no
rights which the insured does not have’”].) That it was Tokio
Marine as Panasonic’s subrogee, not Panasonic itself, that filed
the lawsuit under the Carmack Amendment does not change
either the elements of the cause of action or the section 425.16
step-one analysis.
Because Prestige did not carry its threshold burden under
section 425.16, we need not consider whether Tokio Marine
demonstrated a probability of prevailing on the merits of its
claim. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 80-81;
Shahbazian v. City of Rancho Palos Verdes (2017) 17 Cal.App.5th
823, 830.)
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DISPOSITION
The order denying the special motion to strike is affirmed.
Tokio Marine is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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